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The Israeli Case for Judicial Review and Why We Should Care

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The Israeli Case for Judicial Review and Why We Should Care WEILL Macro DONE Jun 27[1].docx 8/10/2012 3:42 PM Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care By Rivka Weill* I. INTRODUCTION Israel experienced a constitutional revolution in the 1990s.1 In 1992, the Knesset, the Israeli Parliament, enacted two Basic Laws dealing with individual rights: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.2 They were enacted with the sparse presence and slim support of * Assistant Professor, Radzyner School of Law, IDC (Herzliya). J.S.D. Yale Law School. I thank Bruce Ackerman, Aharon Barak, Daphne Barak-Erez, Avihayi Dorfman, David Enoch, Alon Harel, Assaf Jacob, Arthur Jacobson, Roz Myers, Mike Seidman, Frederick Schauer, Yoram Shachar, Mark Tushnet, Adrian Vermeule and participants at the international conference on Judicial Review held at Hebrew University of Jerusalem in May 2009 and the Symposium on Constitutional Agendas held at IDC, Herzliya in December 2010 for their comments on earlier drafts of this Article. This Article is part of a larger project titled ―Sui Generis? The Hybrid Israeli Constitutional Experience‖ available on: www.ssrn.com (May 2009). The first part of the project, which deals with Israel‘s founding era (1948-1992/5), has been expanded in Rivka Weill, Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power, 39 HASTINGS CONST. L. Q. 457 (2012) [hereinafter Weill, Reconciling]. The second part of the project, which deals with Israel‘s second and current era of constitutionalism, has been expanded and deepened in this article. The author translated all Hebrew sources and citations unless noted otherwise. 1. Barak, more than any other speaker, is identified with coining the term ―constitutional revolution‖ to describe the enactment of the 1992 Basic Laws. Aharon Barak, The Constitutional Revolution: Protected Human Rights, 1 L. & GOV‘T 9, 9-13 (1992). Israel has enjoyed a substantive constitution since its founding, including protection for individual rights through common-law methods. It even had an interpretive constitution, under which the courts created, through common- law methods, a requirement that statutes would be interpreted to the extent possible in accordance with individual rights. This interpretive requirement meant that courts at times abandoned traditional methods of interpretation in order to protect individual rights. That is, even in its founding era, Israel serves as an example of weak-form constitutionalism. See Rivka Weill, Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power, 39 HASTINGS CONST. L. Q. 457 (2012) [hereinafter Weill, Reconciling]. 2. Though Israel enacted Basic Laws since the 1950s, prior to 1992, Basic Laws dealt only 349 WEILL Macro DONE Jun 27[1].docx 8/10/2012 3:42 PM 350 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 30:2 Members of the Knesset (MKs).3 But in the 1995 United Mizrahi Bank decision, the Israeli Supreme Court seized upon this opportunity to declare not only the existence of a formal Constitution in the form of Basic Laws, but also the resulting Court power of judicial review over primary legislation.4 Since then, there has been an ongoing vehement debate in Israel over the existence of a formal Israeli Constitution (including the question of whether a Constitution is even desirable).5 Thus, scholars and citizens have witnessed with the structure of government and had at most a procedural entrenchment provision in them. The 1992 Basic Laws included provisions for substantive, not just procedural, entrenchment. That is, they included a ―limitations‖ clause. It was also the first time that individual rights were provided for in the Basic Laws. Weill, Reconciling, supra note 1, 467-68. By substantive entrenchment, I mean that they set substantive criteria that infringing statutes must fulfill. The 1992 Basic Laws require any statute that infringes upon their provisions to pass muster under the following four-part cumulative substantive test: (1) The conflicting provision must be in a statute or authorized by a statute; (2) the infringement must be compatible with the values of a Jewish and democratic State; (3) it must be done for a proper purpose; and (4) it must be proportional. Basic Law: Human Dignity and Liberty, 5752, SH No. 1391 p. 150, § 8 (Isr.); Basic Law: Freedom of Occupation, 5754, SH No. 1454 p. 90, § 4 (Isr.) (Basic Law: Freedom of Occupation originally enacted in 1992, replaced in 1994). By procedural entrenchment, I mean that some Basic Laws set a special amendment process, usually requiring the affirmative consent of a specified supermajority of Members of the Knesset (MKs), to amend them. 3. Only a fraction of the 120 MKs actually voted for their enactment. Posner accordingly wrote that ―only one-quarter of the Knesset‘s members voted for those laws.‖ Richard A. Posner, Enlightened Despot, THE NEW REPUBLIC, Apr. 23, 2007, at 53; cf. RICHARD A. POSNER, HOW JUDGES THINK 362-68 (2008) (for a somewhat softer criticism). Basic Law: Freedom of Occupation passed first reading with the vote of 21 to 16, and the final reading with the support of 23 MKs and none against. Basic Law: Human Dignity and Liberty passed first reading with the vote of 40 to 12, and the final reading with the support of 32 MKs and 21 against. 2 AMNON RUBINSTEIN & BARAK MEDINA, CONSTITUTIONAL LAW OF THE STATE OF ISRAEL 918 (5th ed. 1996) [hereinafter CONSTITUTIONAL LAW OF ISRAEL (5th ed.)] 4. CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Collective Vill., 49 (4) PD 221 [1995] (Isr.). It was partially translated in 31 ISR. L. REV. 764 (1997); see also full translation at 1995-2 ISR. L. REPORTS 1, available at http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf. By formal Constitution, I mean a Constitution that enjoys the following three characteristics: identification, supremacy, and entrenchment. Identification means that it is relatively easy to identify the various parts of the Constitution. There is a commonly accepted document or set of documents that citizens and elites alike refer to as the country‘s Constitution. Supremacy means that the legal system includes a hierarchy that defines the Constitution as supreme over regular law. Thus, a statute should not infringe on a constitutional provision, and, if it does, the courts in many countries are authorized to exercise judicial review to protect the supremacy of the Constitution. Entrenchment means that the constitutional amendment process is more arduous than is the process of amendment of regular law. Obviously, different countries offer a spectrum of these characteristics and the fulfillment of the requirements is often a matter of degree rather than of kind. Cf. Ruth Gavison, The Constitutional Revolution--A Reality or a Self-Fulfilling Prophecy, 28 MISHPATIM [LAWS] 21, 34– 37 (1997). Constitution with capital C is used throughout this Article to describe a formal Constitution as distinguished from a material one. 5. See e.g., ROBERT H. BORK, COERCING VIRTUE: THE WORLDWIDE RULE OF JUDGES 111-34 (2003); RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 50-74 (2004); Gavison, The Constitutional Revolution, supra note 4; Menachem Hofnung, The Unintended Consequences of the Unplanned Legislative Reform – Constitutional Politics in Israel, 44 AM. J. COMP. L. 585, 594, 601 (1996); Eli M. Salzberger, The Constituent Assembly in Israel, 3 L. & GOV‘T 679 (1996); Moshe Landau, The Supreme Court as WEILL Macro DONE Jun 27[1].docx 8/10/2012 3:42 PM 2012] HYBRID CONSTITUTIONALISM 351 bizarre events over the last sixteen years in which the President of the Supreme Court discussed the details of Israel‘s formal Constitution, while the Chair of the Knesset, the Minister of Justice, or the head of the Israeli Bar Association denied its very existence during the same discussion.6 This debate continues today.7 This Article argues that commentators and politicians focus on the wrong question. Rather than struggle with the existence—or lack thereof—of a formal Israeli Constitution, the polity should debate what type of formal Constitution Israel is developing. The either/or approach—influenced by US Marbury8 rhetoric, which established the foundations for the exercise of judicial review over primary legislation in the United States—is not compatible with Israel‘s historical, political, and societal conditions, as elaborated below. Yet Israeli constitutional discourse has been too affected by the American experience. Among those who do believe that Israel enjoys a formal Constitution, the consensus view seems to be that its constitutional development is best explained9 by the Constituent Assembly (or Authority) theory, as articulated by Constitution Maker for Israel, 3 L. & GOV‘T 697 (1996); Joshua Segev, Who Needs a Constitution? In Defense of the Non-Decision Constitution-Making Tactic in Israel, 70 ALB. L. REV. 409 (2007); MENACHEM MAUTNER, LAW & THE CULTURE OF ISRAEL 175-80 (2011). 6. Thus, in various settings former President Barak spoke of the contents of the formal Constitution while Knesset Chairman Reuven Rivlin or Justice Ministers Yossi Beilin, Tzipi Livni and Daniel Friedmann or Israeli Bar Head Hotter-Yishai denied the very existence of a Constitution. See, e.g., Justice Minister Bielin is not So Sure There is Democracy in Israel, GLOBES (July 10, 1999), available at http://www.globes.co.il/news/article.aspx?did=172483 (―Yesterday, in the grand opening of 2000 judicial year, it turned out that Israel is the only democracy in the world where the Justice Minister and the President of the Supreme Court are holding opposing opinions on the question whether there exists an Israeli Constitution.‖). President‘s House Conference: Israel‘s Democracy in the Trial of the Hour (22/5/2003), available at http://www.idi.org.il/PublicationsCatalog/Documents/BOOK_7042/ pdf (The Israeli Democracy Institute) (documenting the.הדמוקרטיההישראליתבמבחןהשעהכנסהנשיא3002 dispute between Knesset Chairman Rivlin and President Barak).
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